Metz v. Kansas City, Mo.
| Decision Date | 18 February 1935 |
| Docket Number | No. 17797.,17797. |
| Citation | 81 S.W.2d 462 |
| Parties | CONRAD METZ, JR., ADM., ETC., RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.
AFFIRMED.
Mosman, Rogers & Buzard and Louis N. Wolf for respondent.
George Kingsley, City Counselor, John J. Cosgrove and Lambert S. O'Malley, Assistant City Counselors, for appellant.
This cause was instituted by one Marjorie Metz in her lifetime for the recovery of damages for personal injuries alleged to have been received by her by reason of the negligence of defendant. Since the trial in the circuit court and during the pendency of the appeal in this court, she has died; and the cause has been revived in the name of Conrad Metz, Jr., administrator of her estate; and, as such administrator, he has been substituted as plaintiff in her stead. The cause now proceeds under the name and style of "Conrad Metz, Jr., Administrator of the Estate of Marjorie Metz, Deceased, v. Kansas City, Missouri, a Municipal Corporation."
It appears that Seventy-first Street runs east and west and Holmes Street runs north and south, each eighty feet in width, and are intersecting public streets of defendant city; that the city, acting through its park board, about or during the year of 1929, in accordance with the plans and specifications provided therefor by the park board, constructed in the pavement of said streets on the intersection thereof what may be termed a "circular island" surrounded by a heavy concrete curb. Said island was constructed in the direct line of travel upon both of said streets approaching and crossing said intersection from all directions so that vehicular travel on either street and from either direction was required to pass around said island. Said island was entirely surrounded by a roadway forty feet in width, connecting with and forming part of the intersecting streets as they approached the intersection and the island, so that one coming into said intersection with a motor or other vehicle could drive entirely around the island thereon or up to and against it and the curb surrounding it. The island was ninety feet in diameter and projected beyond the intersection a distance of five feet into each of the streets coming into the intersection. The concrete curb surrounding it was some seven inches in height and was so placed as to conform with the curve in the curb of the streets as it had been deflected from a direct line and made to turn on or near the outer lines of such streets as they passed around the island. The deflection of the street curbing began at a point upon each of the approaching intersecting streets ninety-five feet distant from the curb around the island.
The petition, after alleging the character of Holmes and Seventy-first Streets as public streets of the defendant city, duly accepted and opened by it for public travel, alleges that the defendant city, in opening, establishing, and grading said streets, had negligently and carelessly constructed the same and had, at all times since such construction, negligently and carelessly maintained the island and curb about it, above referred to (describing it), at approximately the center of the intersection of said streets; that such island and curb were so constructed and maintained as to be dangerous to drivers of vehicles and automobiles on said streets and as to render said streets dangerous and unsafe for travel, especially at night; that, on March 9, 1930, and for a long time prior thereto, said island and curb were and had been a nuisance upon said streets; that the defendant city knew and, by the exercise of ordinary care should have known, of the dangerous character of said island and curb at said intersection long prior to the night of March 9, 1930 (the date upon which the plaintiff received the injuries complained of by her), and for a sufficient length of time prior to such date within which, in the exercise of ordinary care and diligence, it could have removed the same therefrom before the time of her injury thereon but it had, nevertheless, negligently continued to maintain the same to the time of her said injuries; that the defendant city, about March 9, 1930, at the time of the injuries complained of by plaintiff, negligently failed and omitted to place warning posts or lighting posts or signals on said park and curb or near thereto or to provide other means of warning drivers of vehicles of the existence of said island and curb upon the intersection of said streets or of the dangerous condition of said streets on account thereof or of the obstruction of said streets thereby; and that no lights were maintained in the vicinity sufficient to enable any one ignorant of the presence of such island and curb, approaching it from any direction upon said streets, to discover such in time to avoid colliding with them, by reason whereof said streets at said intersection were made dangerous and unsafe for public travel, especially at nighttime, and were a nuisance.
It was further alleged that, at or about the hour of two A.M. on March 9, 1930, plaintiff was driving in an automobile north on Holmes Street from a point thereon south of said intersection, at a time when the street was dark, when her automobile ran into and collided with the south side of said island and curb; that, by reason of said streets at said point being insufficiently lighted and by reason of said island and curb being negligently placed in the center of said intersection and by reason of their having been negligently permitted to remain there by defendant city and by reason of the negligent failure of defendant city to place warning lights or signals at or near said island and curb or to provide other means of warning drivers of automobiles and vehicles of their dangerous character upon said streets, she did not discover said island and curb in time to stop or to prevent her automobile from colliding with the same but ran into the same at the south side thereof without noticing their presence and without knowing that they were there.
The petition alleged that, at the time of said collision, the car was being driven by plaintiff at a lawful rate of speed; that the same was wrecked and damaged; and that she sustained serious, permanent, personal injuries by reason of such collision as a result of the careless and negligent actions of the defendant as pleaded. A detailed recital of plaintiff's injuries was set forth in the petition. Her damages were therein alleged to be $15,000, for which she sought recovery.
The answer, which was a second amended, tendered a general denial, followed by pleas of contributory negligence and of violation of certain laws of the State and various ordinances of Kansas City by plaintiff in the operation of her car.
Upon trial had before the court and the jury, a verdict for $2500 was returned in plaintiff's favor; and, from a judgment rendered thereon in said sum in favor of plaintiff, the defendant city, after unsuccessful motions for a new trial and in arrest of judgment, appealed.
The evidence discloses that, at about the hour of two A.M. on March 9, 1930, the plaintiff was driving an automobile, in which she and her husband were riding, north from a point south of the intersection in question when plaintiff ran the automobile against the curb around the island upon such intersection, wrecking and damaging the automobile and severely injuring herself, for which damages and injuries she seeks a recovery in this suit. There was evidence tending to show plaintiff's injuries and the extent thereof and that they were occasioned by the overturning of the car in which she was riding and her being thrown therefrom at the time of striking the curb around the island at said intersection of said highways.
At the close of plaintiff's evidence, a peremptory instruction requested by the defendant was denied by the court. Again at the close of the whole evidence, the defendant requested a peremptory instruction directing a verdict in its behalf, which was by the court denied.
Other facts in the record will be noted in the course of the opinion as and if occasion may require.
OPINION.1. Upon this appeal, the appellant presents the four following assignments of error:
(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's evidence and also at the close of all the evidence.
(2) The court erred in giving respondent's instruction No. One over the objection of appellant.
(3) The court erred in admitting incompetent and prejudicial testimony by respondent as to other accidents at the place in question.
(4) The verdict is excessive.
Defendant's first assignment of error is presented under three heads, first, that it was not negligent in building or maintaining the island in question; second, that it was not obliged to open the entire intersection of the cross streets for travel and was within its rights in providing a trafficway on either side of the island; third, that, if defendant was liable the evidence in the record as to the maintenance of lights by it, it was necessary for the plaintiff to show not only that lights were absent at the time of the collision resulting in her injuries, but that they were absent for a sufficient length of time prior to such collision for defendant to have known of the absence thereof and to have replaced them and that she had in such respect failed. The three heads may be disposed of together.
2. The plaintiff upon this appeal, in her brief on resubmission, seemingly abandons all ground of negligence that might appear from the allegations of her petition, other than the ground that the defendant negligently maintained the island surrounded by the concrete curb upon the intersection of Holmes and Seventy-first Streets, in question, in that it failed to...
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